/PRNewswire/ -- Today a U.S. District Court ruled that the Food and Drug Administration (FDA) allowed politics to taint their decision to make Plan B(R) available over-the-counter (OTC) for individuals age 18 and older. The judge recognized that the FDA gave into political pressure and did not rely on the sound science that supported making Plan B available without a prescription for all age groups. Calling the FDA's procedure for approving the drug "capricious" and "arbitrary," the court ordered the FDA to reconsider its decisions regarding the Plan B switch to OTC use and ordered the FDA to permit Plan B's availability to 17 year olds without a prescription beginning in 30 days.
"This ruling validates what we have known all along - politicians trumped the scientists when it came to the FDA's handling of Plan B," said Kirsten Moore, President and CEO of the Reproductive Health Technologies Project. "Plan B is a safe and effective back-up contraceptive method that gives women of all ages an option to prevent unintended pregnancy. We urge the FDA and Duramed to work together to lift the unnecessary age restriction and put Plan B on pharmacy shelves to make timely access a reality for anyone who needs it."
This ruling comes in response to a lawsuit filed by the Center for Reproductive Rights against the FDA for its failure to make emergency contraception Plan B available over-the-counter. The lawsuit claimed that the FDA broke its own rules and regulations, ignored medical consensus, as well as the expertise of its own scientists and advisory committees by holding Plan B to an arbitrarily higher standard than other OTC products. The plaintiffs asked the court to order the FDA to make Plan B available over-the-counter for women of all ages.
Plan B is an FDA-approved, back-up birth control method that can prevent pregnancy in the first few days after sex. Containing a concentrated dose of the progestin hormone found in daily birth control pills, Plan B can reduce the risk of pregnancy by up to 89 percent when taken within 72 hours of sexual intercourse (the sooner a woman takes it, the more effective it is). Critics have argued that increased access to Plan B would lead to promiscuity or other risky health behaviors but these concerns are misplaced. Real world experience with EC and other contraceptives show that reducing barriers to access is important but not sufficient when it comes to reducing unintended pregnancy. Access must be coupled with information and education to help individuals make healthy choices throughout their lifetime.
Showing posts with label ruling. Show all posts
Showing posts with label ruling. Show all posts
Monday, March 23, 2009
Friday, February 27, 2009
Employers Unnerved by Ruling Upholding the Legality of Guns in Workplace Parking Lots
/PRNewswire-USNewswire/ -- A new ruling by a federal appeals court means managers in a growing number of states must accept what, for many, is a troubling reality -- their employees have the legal right to keep guns in their cars at work, even with layoffs on the rise and economic tensions running high, said attorney James P. Anelli, an attorney in LeClairRyan's Labor and Employment Group.
On February 19, the U.S. 10th Circuit Court of Appeals reversed a District Court ruling, thereby upholding an Oklahoma law that gave workers the right to keep guns in their locked vehicles. "This unanimous and clearly worded ruling has broad implications for managers in the several states that have passed laws like Oklahoma's," said Anelli, who is based in the law firm's Newark, N.J. office. "It also could embolden pro-gun lawmakers around the country to draft similar measures."
The aim of the Oklahoma law, introduced with the support of the National Rifle Association, was to stop companies from banning guns in workplace parking lots. The rationale was that such prohibitions violated employees' constitutional rights to possess and carry firearms. In October 2007, however, U.S. District Judge Terence Kern issued an injunction against the enforcement of the state's legislation. The new law, he ruled, created an obstacle to employers charged with maintaining safe workplaces according to requirements issued by the U.S. Occupational Health & Safety Administration (OSHA).
In its 3-0 ruling, the appeals court cited evidence that OSHA does not regard the Oklahoma law as being in conflict with its workplace safety provisions. "The court pointed specifically to a January 16 letter by an acting OSHA official that signified OSHA's neutrality on the matter," Anelli noted. "Essentially, this ruling amounted to a clear invitation to states that have passed these types of provisions to feel free to enforce them. For employers who had hoped to see these types of provisions thrown out in court, this is a dramatic development."
Indeed, several Oklahoma employers, including Weyerhaeuser Corp., Whirlpool Corp., and ConocoPhillips, had challenged the Oklahoma law out of safety concerns. In the wake of the appeals court ruling, Anelli said, human resources and legal teams in states where these pro-gun laws have passed may need to rewrite employee handbooks to include firearms policies specifically crafted to reflect the reality that guns could be present in the parking lot. States that have passed pro-gun laws similar to Oklahoma's include: Georgia, Florida, Alaska, Kentucky, Mississippi, Kansas and Minnesota. Similar measures are under consideration in the statehouses of Alabama, Louisiana, Montana, Tennessee, Utah and Virginia.
"I have never seen an employee handbook that had a firearms policy," said Anelli, who has 20 years of experience representing management in employment discrimination and labor litigation. "It is more than prudent to adopt policies on how firearms should be handled and to explicitly state, for example, that guns must stay locked in vehicles and cannot be brought into the workplace."
Even as they draft such policies, however, employers must still provide a safe workplace and intervene where appropriate. For example, if an employee exhibits violent behavior there may still be a basis to take appropriate action to ensure that the workplace remains safe. In fact, some states allow employers to obtain court orders limiting the possession of firearms in parking lots even when the local law allows them if there is an indication of potential violence.
Still, Anelli said, company executives in states that have passed such laws should remember that they have not been relieved of their obligation to keep the workplace, including its parking lot, safe. It is their responsibility to work with security professionals, attorneys and local law enforcement officials to defuse situations involving potential violence and the possible use of firearms. They can also take other steps to protect both their companies and employees. Some types of businesses, for example, may have been legally exempted from the applicable law and can therefore continue to enforce gun bans. Others might be able to carve out "secured parking areas" that are gun-free but still in compliance with their states' laws.
Importantly, the Court also rejected the employers' arguments that, as a "property owner," they could regulate if firearms were stored in employee vehicles. The appeals court ruled, however, that the Oklahoma law could most accurately be "characterized as a restriction on Plaintiff's use of their property." In short, the appeals court ruled that the employer's property could be regulated in this manner and withstand constitutional "taking" arguments. Part of the ruling is based on the notion Oklahoma was expanding the rights of its citizens, as citizens, to store firearms in their vehicles as opposed to regulating employers or addressing employment, per se.
Anelli added that if OSHA were to reverse course and declare such laws in conflict with its existing safety provisions -- perhaps after a policy review by the Obama administration -- or if other appellate panels were to issue conflicting rulings on the legality of firearms in workplace parking lots, the U.S. Supreme Court might take up the matter.
On February 19, the U.S. 10th Circuit Court of Appeals reversed a District Court ruling, thereby upholding an Oklahoma law that gave workers the right to keep guns in their locked vehicles. "This unanimous and clearly worded ruling has broad implications for managers in the several states that have passed laws like Oklahoma's," said Anelli, who is based in the law firm's Newark, N.J. office. "It also could embolden pro-gun lawmakers around the country to draft similar measures."
The aim of the Oklahoma law, introduced with the support of the National Rifle Association, was to stop companies from banning guns in workplace parking lots. The rationale was that such prohibitions violated employees' constitutional rights to possess and carry firearms. In October 2007, however, U.S. District Judge Terence Kern issued an injunction against the enforcement of the state's legislation. The new law, he ruled, created an obstacle to employers charged with maintaining safe workplaces according to requirements issued by the U.S. Occupational Health & Safety Administration (OSHA).
In its 3-0 ruling, the appeals court cited evidence that OSHA does not regard the Oklahoma law as being in conflict with its workplace safety provisions. "The court pointed specifically to a January 16 letter by an acting OSHA official that signified OSHA's neutrality on the matter," Anelli noted. "Essentially, this ruling amounted to a clear invitation to states that have passed these types of provisions to feel free to enforce them. For employers who had hoped to see these types of provisions thrown out in court, this is a dramatic development."
Indeed, several Oklahoma employers, including Weyerhaeuser Corp., Whirlpool Corp., and ConocoPhillips, had challenged the Oklahoma law out of safety concerns. In the wake of the appeals court ruling, Anelli said, human resources and legal teams in states where these pro-gun laws have passed may need to rewrite employee handbooks to include firearms policies specifically crafted to reflect the reality that guns could be present in the parking lot. States that have passed pro-gun laws similar to Oklahoma's include: Georgia, Florida, Alaska, Kentucky, Mississippi, Kansas and Minnesota. Similar measures are under consideration in the statehouses of Alabama, Louisiana, Montana, Tennessee, Utah and Virginia.
"I have never seen an employee handbook that had a firearms policy," said Anelli, who has 20 years of experience representing management in employment discrimination and labor litigation. "It is more than prudent to adopt policies on how firearms should be handled and to explicitly state, for example, that guns must stay locked in vehicles and cannot be brought into the workplace."
Even as they draft such policies, however, employers must still provide a safe workplace and intervene where appropriate. For example, if an employee exhibits violent behavior there may still be a basis to take appropriate action to ensure that the workplace remains safe. In fact, some states allow employers to obtain court orders limiting the possession of firearms in parking lots even when the local law allows them if there is an indication of potential violence.
Still, Anelli said, company executives in states that have passed such laws should remember that they have not been relieved of their obligation to keep the workplace, including its parking lot, safe. It is their responsibility to work with security professionals, attorneys and local law enforcement officials to defuse situations involving potential violence and the possible use of firearms. They can also take other steps to protect both their companies and employees. Some types of businesses, for example, may have been legally exempted from the applicable law and can therefore continue to enforce gun bans. Others might be able to carve out "secured parking areas" that are gun-free but still in compliance with their states' laws.
Importantly, the Court also rejected the employers' arguments that, as a "property owner," they could regulate if firearms were stored in employee vehicles. The appeals court ruled, however, that the Oklahoma law could most accurately be "characterized as a restriction on Plaintiff's use of their property." In short, the appeals court ruled that the employer's property could be regulated in this manner and withstand constitutional "taking" arguments. Part of the ruling is based on the notion Oklahoma was expanding the rights of its citizens, as citizens, to store firearms in their vehicles as opposed to regulating employers or addressing employment, per se.
Anelli added that if OSHA were to reverse course and declare such laws in conflict with its existing safety provisions -- perhaps after a policy review by the Obama administration -- or if other appellate panels were to issue conflicting rulings on the legality of firearms in workplace parking lots, the U.S. Supreme Court might take up the matter.
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